EISTRAT v. HUMISTON (1954)

This is an appeal by plaintiff from an order denying his motion for change of venue. There is also a purported appeal from the order of the trial court denying his motion to dismiss.

I

The order denying the motion for change of venue.

June 3, 1953, plaintiff filed an action in the superior court of Los Angeles County to recover on a promissory note in the amount of $30,000.00. At the time plaintiff filed the action there was pending in the superior court of Tulare County an action by plaintiff against defendant in respect to a timber contract for which the note of $30,000.00 was the major consideration.

Thereafter, defendant filed an answer and cross-complaint to the action filed in Los Angeles County. On August 10, 1953, plaintiff filed a demurrer to the cross-complaint which was overruled, and on November 18, 1953, filed a notice of motion for change of venue. No affidavit of merits accompanied this motion. A notice of motion to dismiss the cross-complaint was also filed.

Since plaintiff demurred to the cross-complaint without filing a motion for change of venue on any of the statutory grounds he waived his right to have the motion granted. (Cook v. Pendergast, 61 Cal. 72, 75 et seq.; Wadleigh v. Phelps, 147 Cal. 541, 542, 82 P. 200.)

It is also true that since plaintiff did not file an affidavit of merits as required by section 396(b) of the Code of Civil Procedure, he waived his right to have the motion for change of venue granted. (Noland v. Noland, 52 Cal.App.2d 58[1], 125 P.2d 847.)

II

The motion to dismiss.

An order denying a motion to dismiss an action before any evidence is offered is not an appealable order. (Parker v. Owen, 83 Cal.App.2d 474, 189 P.2d 81.) Hence, the purported appeal from such order must be dismissed.

The order denying the motion for change of venue is affirmed. The appeal from the order denying the motion to dismiss the action in the trial court is dismissed.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.